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feoffre to uses was extinguished by crime or by defect; and the lord (as was before observed) might hold it discharged of the use.(6) 6. No wife could be endowed, or husband have his curtesy, of a use:(c) for no trust was declared for their benefit, at the original grant of the estate. And therefore it becamo customary, when most estates were put in use, to settle before marriage some joint-estate to the use of the husband and wife for their lives; which was the original of modern jointures.(d) 7. A use could not be extended by writ of elegit, or other legal process, for the debts of cestuy que use.(e) For, being merely a creature of equity, the common law, which looked no further than to the person actually seised of the land, could award no process against it.
"It is impracticable, upon our present plan, to pursue the doctrine of uses through all the refinements and niceties which the ingenuity of the times (abounding in subtle disquisitions) deduced from this child of the imagination; when once a departure was permitted from the plain simple rules of property established by the antient law. These principal outlines will be fully sufficient to show the ground of lord Bacon's complaint, (f) that this course of proceeding “was turned to deceive many of their just and reasonable rights. A man that *332]
had cause to sue for land knew not against whom to *bring his action,
or who was the owner of it. The wife was defrauded of her thirds; the husband of his curtesy; the lord of his wardship, relief, heriot, and escheat; the creditor of his extent for debt; and the poor tenant of his lease.” To remedy these inconveniences, abundance of statutes were provided, which made the lands liable to be extended by the creditors of cestuy que use,(g) allowed actions for the freehold to be brought against him if in the actual pernancy or enjoyment of the profits; (h) made him liable to actions of waste ;) established his conveyances and leases made without the concurrence of his feoffees;(k) and gave the lord the wardship of his heir, with certain other feodal perquisites.(1).
These provisions all tended to consider cestuy que use as the real owner of the estate; and at length that idea was carried into full effect by the statute 27 Hen. VIII. c. 10, which is usually called the statute of uses, or, in conveyances and pleadings, the statute for transferring uses into possession. The hint seems to have been derived from what was done at the accession of king Richard III.; who, having, when duke of Gloucester, been frequently made a feoffee to uses, would upon the assumption of the crown (as the law was then understood) have been entitled to hold the lands discharged of the use. But to obviate só notorious an injustice, an act of parliament was immediately passed, (m) which ordained, that where he had been so enfeoffed jointly with other persons, the land should vest in the other feoffees, as if he had never been named; and that, where he stood solely enfeoffed, the estate itself should vest in cestuy que use in like manner as he had the use. And so the stat. of Henry VIII., after reciting the various inconveniences before mentioned, and many others, enacts, that “when any person shall be seised of lands, &c., to the use, confidence, or trust
of any other person or body *politic, the person or corporation entitled
to the use in fee-simple, fee-tail, for life, or years, or otherwise, shall from thenceforth stand and be seised or possessed of the land, &c. of and in the like estates as they have in the use, trust, or confidence; and that the estate of the person so seised to uses shall be deemed to be in him or them that have tho use, in such quality, manner, form and condition, as they had before in the use.” The statute thus executes the use, as our lawyers term it; that is, it conveys the possession to the use, and transfers the use into possession; thereby making cestuy que use complete owner of the lands and tenements, as well at law s in equity (5) Jenk. 190,
(1) Stat. 1 Ric. II. c. 9. 4 Hen. IV. c. 7, c. 15. 11 Her. VI See page 137. Bro. Abr. tit. erecutions, 90.
(1) Stat. 4 Hen. VII. c. 17. 19 Hen. VII. c. 16. lo Stat. 50 Edw. III. c. 6. 2 Ric. II. Bose. 2, c. 3. 19 Hen. () 1 Ric. III. c. 6.
4 Kep. 1. 2 And. 75.
c. 3. 1 Hen. VII. c. 1.
(1) Stat. 11 Hen. VI. c. 5.
Use of the law, 153.
VII. c. 15.
The statute having thus not abolished the conveyance to uses, but cnly annihilated the intervening estate of the feoffee, and turned the interest of ces?uy que use into a legal instead of an equitable ownership; the courts of common law began to take cognizance of uses, instead of sending the party to seek his relief in chancery. And, considering them now as merely a mode of conveyance, very many of the rules before established in equity were adopted with improvements by the judges of the common law. The same persons only were held capable of being seised to a use, the same considerations were necessary for raising it, and it could only be raised of the same hereditaments, as formerly. But as the statute, the instant it was raised, converted it into an actual possession of the land, a great number of the incidents, that formerly attended it in its fiduciary state, were now at an end. The land could not escheat or be forfeited by the act or defect of the feoffee, nor be aliened to any purchaser discharged of the use, nor be liable to dower or curtesy on account of the seisin of such feoffee; because the legal estate never rests in him for a moment, but is instantaneously transferred to cestuy que use as soon as the use is declared. And, as the use and the land were now convertible terms, they became liable to dower, curtesy, and escheat, in consequence of the seisin of cestuy que use, who was now become the terre-tenant also; and they likewise were no longer devisable by will. *The various necessities of mankind induced also the judges very
[*334 soon to depart from the rigour and simplicity of the rules of the common law, and to allow a more minute and complex construction upon conveyances to uses than upon others. Hence it was adjudged that the use need not always be executed the instant the conveyance is made : but, if it cannot take effect at that time, the operation of the statute may wait till the use shall arise upon some future contingency, to happen within a reasonable period of time; and in the mean while the antient use shall remain in the original grantor: as, when lands are conveyed to the use of A. and B., after a marriage shall be had between them,(n) or to the use of A. and his heirs till B. shall pay him a sum of money, and then to the use of B. and his heirs.() Which doctrine, when devises by will were again introduced, and considered as equivalent in point of construction to declaration of uses, was also adopted in favour of executory devises.(P) But herein these, which are called contingent or springing uses, differ (*) 2 Roll. Abr. 791. Cro. Eliz. 473.
(P) See page 173. Bro. Abr. tit. Feoffm. al uses, 30. 56 Mr. Sugden devotes a learned and instructive note, of considerable length, (annexed to the second chapter of his edition of Gilbert on Uses,) to an elucidation of this subject. The reader will do well to peruse the whole, and not rest satisfied with the following extracts. Mr. Sugden says, shifting, secondary, and springing uses are frequently confounded with each other and with future or contingent uses. They may, perhaps, be thus classed. Ist. Shifting or secondary uses, which take effect in derogation of some other estate, and are either limited expressly by the deed, or are authorized to be created by some person named in the deed. 2dly, Springing uses, confining this class to uses limited to arise on a future event where no preceding use is limited, and which do not take effect in derogation of any other interest than that which results to the grantor, or remains in him, in the mean time. 3dly, Future or contingent uses are properly uses to take effect as remainders: for instance, a use to the first unborn son of A., after a previous limitation to him for life or for years, determinable on his life, is a future or contingent use, but yet does not answer the notion of either a shifting or a springing use. Contingent uses naturally arose aft the statute of 27 Hen. VIII. in imitation of contingent remainders.
The first class—that is, shifting or secondary uses—are at this day so common that they pass without observation. In every marriage settlement, the first use is to the owner in fee until marriage, and after the marriage to other uses. Here the owner in the first instance takes the fee, which upon the marriage ceases, and the new use arises. But a shifting use cannot be limited on a shifting use; and shifting uses must be confined within such limits as are not to tend to a perpetuity. See ante, chap. 11. But a shifting use may be created after an estate-tail to take effect at any period, however remote; because the tenant in tail for the time being may, by a recovery, defeat the shifting use.
As to the second class, or springing uses, before the statute of Hen. VIII, there was no mischief in an independent original springing use to commence at a distant period, be
from an executory devise; in that there must be a person seised to such uses at the time when the contingency happens, else they can never be executed by the statute; and therefore if the estate of the feoffee to such use be destroyed by alienation or otherwise, before the contingency arises, the use is destroyed forever:(9) whereas by an executory devise the freehold itself is transferred to the future devisce. And, in both these cases, a fee may be limited to take effect after a fee;(r) because, though that was forbidden by the common law in favour of the lord's escheat, yet when the legal estate was not extended beyond one fee-simple, such subsequent uses (after a use in fee) were before the statute permitted to be limited in equity; and then the statute executed the legal estate in the same manner as the use before subsisted. It was also held, that a use, though executed, may change from one to another by circumstances ex post *335]
facto;(s) as, if A. makes a feoffment *to the use of his intended wife and
her eldest son for their lives, upon the marriage the wife takes the whole use in severalty; and upon the birth of a son, the use is executed jointly in them both.(t) This is sometimes called a secondary, sometimes a shifting, use. And, whenever the use limited by the deed expires, or cannot vest, it returns back to him who raised it, after such expiration, or during such impossibility, and is styled a resulting use. As, if a man makes a feoffment to the use of his intended wife for life, with remainder to the use of her first-born son in tail; here, till he marries, the use results back to himself; after marriage, it is executed in the wife for life: and, if she dies without issue, the whole results back to him in fee.(u) It was likewise held, that the uses originally declared may be revoked at any future time, and new uses be declared of the land, provided the grantor reserved to himself such a power at the creation of the estate; whereas the utmost that the common law would allow, was a deed of defeazance coeval with the grant itself, and therefore esteemed a part of it, upon events specially mentioned.(w) And, in case of such a revocation, the old uses were held instantly to cease, and the new ones to become executed in their stead.(x) And this was permitted, partly to indulge the convenience, and partly the caprice, of mankind; who (as lord Bacon observes)(y) have always affected to have the disposition of their property revocable in their own time, and irrevocable ever afterwards.
By this equitable train of decisions in the courts of law, the power of the court of chancery over landed property was greatly curtailed and diminished.57
Ibid. 350. 1 Rep. 120.
(8) 1 Rep. 134, 138. Cro. Eliz. 439.
Bro. Abr. tit. Feoffin, al uses, 30.
See page 327.
Co. Litt. 237. (®) On Uses, 316.
cause the legal estate remained in the trustee. After the statute, too, the use was held to result to, or remain in, the person creating the future use, according to the mode of conveyance adopted, till the springing use arose. This resulting use the statute executed, so that the estate remained in the settler till the period when the use was to rise, which might be at any time within the limits allowed by law in case of an executory devise. When springing uses are raised by conveyances not operating by transmutation of possession, as such conveyances have only an equitable effect until the statute and use meet, a springing use may be limited by them at once; but where the conveyance is one which does operate by transmutation of possession, (as a feoffment, fine, recovery, or lease and release,) two objects must be attended to: first, to convey the estate according to the rules of common law; secondly, to raise the use out of the seisin created by the conveyance. Now, the common law does not admit of a freehold being limited to commence in futuro. See ante, p. 143.
As to the third class, or future or contingent uses, where an estate is limited previously to a future use, and the future use is limited by way of remainder, it will be subject to the rules of common law, and, if the previous estate is not sufficient to support it, will be void. See ante, p. 168.
Future uses have been countenanced, and springing uses restrained, by what is now firm rule of law,-namely, that if such a construction can be put upon a limitation in use is that it may take effect by way of remainder. it shall never take effect as a springing use. Southcot vs. Stowel, i Mod. 226, 237. 2 Mod. 207. Goodtitle vs. Billington, Doug 758.-Cutty. ** With rospect to what shall be said to be a use executed by the statute of 37 Hen.
But one or two technical scruples, which the judges found it hard to get over, restored it with tenfold increase. They held, in the first place, that no uso could be limited on a use;"(z) and that when a man bargains and sells his land for money, which raises a use by implication to the bargainee, the limitation of
(6) Dyer, 155.
VIII. c. 10, or a trust-estate now not executed, it is held that where a use is limited upon a use, it is not executed, but the legal estate is vested in him to whom the first use is limited. Dy. 155. As where an estate is conveyed to another in these words, "To W. and his heirs, to the use of him and his heirs, in trust for, or to the use of, R. and his heirs,” the use is not executed in R., but in W., and the legal estate is vested in him as trustee. Cas. T. Talb. 164. Ibid. 138, 139. 2 P. Wms. 146. So, where E. made a settlement to the use of himself and his heirs until his then intended marriage, and afterwards to the use of his wife for life, and after her death to the use of trustees and their heirs during the life of E., upon trust to permit him to take the profits, remainder to the first and other sons of the marriage, &c., remainder to the use of the heirs of the body of E.; it was adjudged that E. took only a trust-estate for life, for the use to him could not execute upon the use which was limited to the trustees for his life, and consequently the legal estate for his life was executed in them by the statute of uses, and the limitation to the heirs of the body of E. operated as words of purchase, and created a contingent remainder. Carth. 272, S. C. Comber, 312, 313. i Lord Raym. 33. 4 Mod. 380. See also 7 T. R. 342. Ibid. 438, S. C. Ibid. 433. 12 Ves. 89.
So, where something is to be done by the trustees which makes it necessary for them to have the lega. estate, such as payment of the rents and profits to another's separate use, or of the debts of the testator, or to pay rates and taxes and keep the premises in repair, or the like, the legal estate is vested in them, and the grantee or devisee has only a trust-estate. 3 Bos. & Pul. 178, 179. 2 T. R. 444. 6 T. R. 213. 8 East, 248. 12 East, 455. 4 Taunt. 772. As where lands were devised to trustees and their heirs in trust for A., a married woman and her heirs, and that the trustees should from time to time pay the rents and profits to A., or to such person as she by any writing under her hand, as well during coverture as being sole, should appoint without the intermeddling of her husband, who he willed should have no benefit or disposal thereof; and as to the inheritance of the premises in trust for such person and for such estates as A. by her will, or other writing under her hand, should appoint, and, for want of such appointment, in trust for her and her heirs ; the question was, whether this was a use executed by the statute, or a bare trust for the wife; and the court held it to be a trust only, and not a use executed by the statute. 1 Vern. 415. And again, in a late case where a devise was to trustees and their heirs upon trust, to permit a married woman to receive the rents and profits during her life for her own sole and separate use, notwithstanding her coverture, and without being in any wise subject to the debts or control of her then or after-taken husband, and her receipt alone to be a sufficient discharge, with remainder over, it was held that the legal estate was vested in the trustees; for, it being the intention of the testator to secure to the wife a separate allowance free from the control of her husband, it was essentially necessary that the trustees should take the estate with the use executed, in order to effectuate that intention ; otherwise the husband should be entitled to receive the profits and defeat the very object which the testator had in view. 7 Term Rep. 652. See also 5 East, 162. 9 East, 1. So, where lands were devised to trustees and their heirs in trust, to pay out of the rents and profits several legacies and annuities, and to pay all the residue of the rents and profits to C., a married woman, during her life, for her separate use or as she should direct, and after her death the trustees to stand seised to the use of the heirs of her body, with remainders over, it was held by lord King that the use was executed in the trustees during the life of C., who had only a trust-estate in the surplus of the rents and profits for life, with a contingent remainder to the heirs of her body, and that her eldest son would take as a purchasor ; for, by the subsequent words, viz., " that the trustees should stand seised to the use of the heirs of the body of C.,” the use was executed in the persons entitled to take by virtue thereof; and therefore, there being only a trust-estate in C., and a use executed in the heirs of her body, these different interests could not unite and incorporate together so as to create an estate-tail by operation of law in C. And he took a difference between the principal case and that of Broughton vs. Langley, (1 Lutw. 814. 2 Ld. Raym. 873;) for there it was to permit A. to receive the rents and profits for life, but in the principal case it was a trust to pay over the rents and profits to another, and therefore the estate must remain in the trustees to perform the will, (8 Vin. 262. pl. 19. 1 Eq. Ca. Abr. 383, 384;) and this decree was affirmed in the house of lords. 3 Bro.C. P. 458. See 3 Bos. & Pul. 179. So, where lands were devised to trustees and their leirs in trust to pay out of the rents and profits, after deducting rates, taxes, and repairs, the residue to C. S. for life, and after his decease to the use of the heirs male of the body of C. S.,
a further use to another person is repugnant, and therefore *void.(a)
And therefore on a feoffment to A. and his heirs, to the use of B. and his heirs, in trust for C. and his heirs, they held that the statute executed only the first use, and that the second was a mere nullity: not adverting, that the
(a) 1 And. 37, 136,
with remainder over; it was held by lord Thurlow that the use was executed in the trustees during the life of C. S., who had only a trust-estate for life, and the remainder in tail was a legal estate which could not unite and incorporate together, and C. S. could not suffer a valid recovery; for, in order to make a good tenant to the præcipe, there must either be a legal estate for life, and a legal remainder in tail, or an equitable estate for life, with an equitable remainder in tail. 1 Bro.C. C. 75. And also, where lands were devised to trustees and their heirs in trust, that they should, out of the rents and profits or by sale or mortgage of the whole, or so much of the estate as should be necessary, raise a sum sufficient to pay the testator's debts and legacies, and afterwards in trust and to the use of T. B. for life, with several remainders over, the question was, whether the legal estate vested in the trustees. Lord Hardwicke was of opinion that the devise to the trustees and their heirs carried the whole fee to them, and therefore the estate for life, as well as the estates in remainder, were merely trust-estates in equity; that part of the trust was to sell the whole, or a sufficient part, of the estate for the payment of debts and legacies, which would carry a fee by construction, though the word "heirs" were omitted in the devise, as in 1 Eq. Ča. Abr. 184; for the trustees must have a fee in the whole estate to enable them to sell, hecause, it being uncertain what they may sell, no purchasor could otherwise be safe; that the only doubt he had was on the case of lords Say and Seal vs. lady Jones, before lord King, and affirmed in the house of lords, as to that point; but, on examination, that case differed in a material part; and, taking together all the clauses of that will, it only amounted to a devise to trustees and their heirs during another's life, upon which a legal remainder might be properly limited. 1 Vez. 143, S. C. 2 Atk. 246, 570. And it was taken for granted in 2 Vez. 646, that a devise to trustees and their heirs in trust, to pay the rents and profits to another, vested the legal estate in the trustees. For in general the distinction is, that where the limitation to trustees and their heirs is in trust to receive the rents and profits and pay them over to A. for life, &c., this use to A. is not executed by the statute, but the legal estate is vested in the trustees to enable them to perform the will; but where the limitation is to trustees and their heirs in trust, to permit and suffer A. to receive the rents and profits for his life, &c., the use is executed in A., unless it be necessary the use should be executed in the trustees to enable them to perform the trust, as in the case of Harton vs. Harton, above mentioned. So, in Taunt. 109, the devise being to trustees and their heirs in trust, to pay unto, or permit and suffer the testator's niece to have, receive, and take, the rents and profits for her life, it was held that the use was executed in the niece, because the words to permit, &c. came last; and in a will the last words shall prevail. See 1 Eq. Ca. Abr. 383. As where lands were devised to trustees and their heirs to the intent and purpose to permit A. to receive the rents and profits for his life, and after that the trustees should stand seised to the use of the heirs of the body of A., with a proviso that A., with the consent of the trustees, might make a jointure on his wife, it was held that this was a use executed in A., and not a trust-estate; for it would have been a plain trust at common law, and what was a trust of a freehold of inheritance at common law is executed by the statute, which mentions the word “trust” as well as “use;" and the case in 2 Vent. 312, adjudged to the contrary upon this point, was denied to be law. 1 Lutw. 814, 823, S.C. 2 Ld. Raym. 673. 2 Salk. 679. And the same distinction was taken by lord Kenyon in the case of Doe, on the demise of Woolley vs. Pickard, Stafford summer assizes, 1797, and by Mr. Justice Lawrence in Jones vs. Prosser, Worcester spring assizes, 1798.
The statute of uses is not held to extend to copyhold estates, for it is against the nature of their tenure that any person should be introduced into the estate without the consent of the lord, (Gilb. Ten. 170;) nor to leases for years which are actually in existence at the time of their being assigned to the use; as where A., possessed of a lease for years, assigns it to B., to the use of C., all the estate is in B., and C. takes only a trust or equitable estate. But if A., seised in fee, makes a feoffment to the use of B. for a terın of years, the term is served out of the seisin of the feoffee, and is executed by the statute. It is the same if he bargains and sells the estate of which he is seised in fee for a term of years
Dy. 369, a., and in the margin, 2 Inst. 671. Nor does the statute of uses extend to cases where the party seised to the use and the cestuy que use is the same person, except there be a direct impossibility for the use to take effect at common law. Bac. Law Tracts, 352, 2 ed. 4 M. & S. 178. In that case, a release was made to A. and C. and their heirs, habendum to them and their heirs and asrigns as tenants in common, and not as joint-tenants, to the use of them, their heirs and